Wednesday, January 31, 2007

LII needs to rewrite its entry on legal writing

Form Cornell Law School's Legal Information Institute:
There are generally two types of legal writing. The first type requires a balanced analysis of a legal problem or issue. Examples of the first type are inter-office memoranda and letters to clients. To be effective in this form of writing, the lawyer must be sensitive to the needs, level of interest and background of the parties to whom it is addressed. A memorandum to a partner in the same firm that details definitions of basic legal concepts would be inefficient and an annoyance. In contrast, their absence from a letter to a client with no legal background could serve to confuse and complicate a simple situation.

The second type of legal writing is persuasive. Examples of this type are appellate briefs and negotiation letters written on a clients behalf. The lawyer must persuade his or her audience without provoking a hostile response through disrespect or by wasting the recipient's time with unnecessary information. In presenting documents to a court or administrative agency he or she must conform to the required document style.

The drafting of legal documents, such as contracts and wills, is yet another type of legal writing. Guides are available to aid a lawyer in preparing the documents but a unique application of the "form" to the facts of the situation is often required. Poor drafting can lead to unnecessary litigation and otherwise injure the interests of a client.
I don't care for this writing, and I hope you can see why. It bothers me all the more because it is about legal writing.

Tuesday, January 30, 2007

The surface appearance of prose

I have been having a sort of debate with Dr. George Gopen, the noted legal-writing consultant, about some aspects of legal writing. It's not really a debate. I just tried to make some points, thinking he was overstating his case. He defended his position. That's about it. It's here.

For example, he said that when writing teachers tell students to "avoid the passive voice," that's wrong.

I say it's usually good advice.

He now says it's really much more sophisticated than that. I agree and have previously written about it here.

Dr. Gopen also said I seem overly concerned with certain aspects of the surface appearance of prose. Perhaps that is true, but I'm not sure if that is a criticism. Today I read something that made me think it is good that at least someone is concerned with the surface appearance of legal writing:
  • In many legal settings specialized forms of written communication are required. In many others, writing is the medium in which a lawyer must express their analysis of an issue and seek to persuade others on their clients' behalf. Any legal document must be concise, clear, and conform to the objective standards that have evolved in the legal profession.
I do not believe Dr. Gopen's "stress position" wisdom would help this writer. This writer needs to avoid the passive voice. This writer needs to understand pronoun agreement. This writer needs to understand parallelism.

If noticing those problems and wanting to fix them makes me overly concerned with the surface appearance of writing, then I'm okay with that.

Monday, January 08, 2007

Missing hyphen

From the Austin American-Statesman, Monday, January 08, 2007:

Congress Avenue reopens after dead bird investigation

Congress Avenue reopened this afternoon after a massive bird death scare caused investigators to shut down the road for several hours this morning.

* * *

Shouldn't this be a "dead-bird investigation" and a "massive, bird-death scare"?